case does not obviate the necessity of intro- | 387; Waymire v. Shipley, 52 Or. 464, 97 Pac. ducing evidence upon which the court may base 807; Mael v. Stutsman, 60 Or. 66, 117 Pac. a finding as to an issue of fact. 1093; Sattler v. Knapp, 60 Or. 466, 120 Pac. 2. Department 1. Appeal from Circuit Court, Multnomah County; Robert G. Morrow, Judge. On petition for rehearing. Petition denied. For former opinion, see 175 Pac. 443. It is further urged that the ruling in Guernsey v. Marks, supra, is not applicable to the case at bar, for the reason that, in actions for the collection of promissory notes and the foreclosure of mortgages, the attorney's fees are matters of contract, while in the foreclosure of mechanics' liens such fees Allen R. Joy and L. E. Crouch, both of are a creature of statute and in the nature Portland, opposed. of costs. This may be conceded without citation of authority, but the deduction which A. T. Lewis, Leslie S. Parker, and Lewis, Lewis & Finnigan, all of Portland, for the petition for rehearing. BENSON, J. In the original opinion here- the learned counsel draws from this premise in occurs the following language: "The complaint alleges that $300 is a reasonable sum to be allowed as an attorney's fee for foreclosing the lien, and this averment is denied by the answer. No evidence was offered upon the issue so joined, and therefore nothing can be allowed thereon. Guernsey v. Marks, 55 Or. 323, 106 Pac. 334." This portion of the opinion of the court is challenged by plaintiff in a petition for rehearing, which calls our attention to the fact that in the trial court a stipulation in regard to the matter was entered into as fol lows: "Mr. Lewis: I will now ask Mr. Joy if he will stipulate as to attorney's fee? "Mr. Joy: That has already been gone over and agreed upon. "The Court: Let us get it into the record formally. Do you agree the attorney's fee may be determined by the court, Mr. Joy? "Mr. Joy: I do, I always do in these cases. I made that statement before." It will be observed that nothing is said in this agreement as to the amount of the fee, or as to the introduction of evidence. It is simply stipulated that in this particular the court shall do what the statute says it shall do, namely, to make a finding and decree as to the reasonable amount to be awarded as a fee; and our attention has not been called to any authority supporting the doctrine that such a stipulation obviates the necessity of introducing evidence upon which to base a finding as to an issue of fact. We might well have added to the citation of Guernsey v. Marks, supra, the following cases, all of which announce the same doctrine: Bowles v. Doble, 11 Or. 474, 5 Pac. 918; Bradtfeldt v. Cooke, 27 Or. 194, 40 Pac. 1, 50 Am. St. Rep. 701; Cox v. Alexander, 30 Or. 438, 46 Pac. 794; First National Bank V. Mack, 35 Or. 122, 57 Pac. 326; Lassas v. McCarty, 47 Or. 474, 84 Pac. 76; Wright v. Conservative Investment Co., 49 Or. 177, 89 Pac. does not appear to us to be a logical sequence. It is true that the Supreme Court of California, in Mulcahy v. Buckley, 100 Cal. 484, 35 Pac. 144, holds that it is unnecessary to allege in the complaint the sums paid for filing and recording the claim of lien, or to aver what is contended for as a reasonable attorney's fee, since the right to recover these is a necessary incident of the judgment, as are costs. This would be true if such items consisted of specific amounts, fixed by statute, as are all other costs in this state; but they do not, and the reasonableness of such a fee is just as clearly an issuable fact as it would be in an action to collect a promissory note which provides for a reasonable attorney's fee. These conclusions are supported by the case of Sattler v. Knapp, supra, which was a suit for the foreclosure of a mechanic's lien. Our attention is called by counsel to two decisions of this court (Portland Sash & Door Co. v. Parker, 61 Or. 203, 121 Pac. 1135, and Wills v. Zanello, 59 Or. 291, 117 Pac. 291) which appear to support the contention that litigants may agree that the court may determine the reasonableness of an attorney's fee without the introduction of evidence. It does not appear from the opinions in these cases that the question was seriously presented upon the hearing and it is not discussed, and it may well be observed that in each of these cases the trial court did make a finding upon the subject, which was affirmed by this court, while in the case at bar there was no evidence offered and no finding made by the court below, and we are called upon to make a finding upon an issue of fact, without a syllable of testimony upon which to base it. This is contrary to a long line of decisions of this court, and the petition for re hearing must be denied. (90 Or. 243) OF OFFENSE. STATE v. SHUSTER. (Supreme Court of Oregon. Nov. 12, 1918.) 1. CRIMINAL LAW 883-VERDICTS-DEGREE Generally a verdict of guilty need not specify the degree of crime of which defendant is convicted; a verdict of guilty as charged in the indictment finding the defendant guilty of highest degree therein charged. 2. EMBEZZLEMENT OF MONEY. 49 VERDICT-AMOUNT Verdict finding defendant "guilty as charged in the indictment," which specified amount of money embezzled, was sufficient compliance with L. O. L. § 1958, providing that verdict finding a public official guilty of larceny must ascertain as near as may be the amount of money taken. Department 2. Appeal from Circuit Court, Coos County; John S. Coke, Judge. A. E. Shuster was convicted of the crime of larceny of public money, and sentenced to pay a fine of $1,329.90, and be confined in the penitentiary from one to seven years. Defendant appeals. Affirmed. N. C. McLeod, of North Bend, for appellant. John F. Hall, of Marshfield, for the State. OLSON, J. The appellant assigns as error that the indictment is faulty, in that it does not describe the character and value of the moneys alleged to have been embezzled; but this point was waived by his counsel on argument in this court. The only point now relied upon is that the verdict of the jury is a general verdict, and not sufficiently definite to comply with the provisions of section 1958, L. O. L. The indictment charged the defendant, after describing his official status, as follows: "Did then and there wickedly, willfully, and unlawfully, feloniously, and fraudulently, take and convert to his own use the sum of six hundred and sixty-four dollars and ninety-five cents, lawful money collected by him and belonging to the county of Coos, and did neglect and refuse to pay the same over to the county treasurer of Coos county, Oregon, or any portion thereof, as by law directed and required, after lawful demand so to do, well knowing that he was not entitled to the same.' Section 1957, L. O. L., defines the crime of larceny of public money by any public official, and section 1958, L. O. L., contains this provision: "The amount of money converted, loaned, or neglected, or refused to be paid, must be ascertained by the verdict of the jury as near as may be." The jury brought in a verdict in the following form, omitting the venue and title: "We, the jury impaneled to try the above-entitled cause, find the defendant guilty as charged in the indictment. Dated at Coquille City, Coos county, Oregon, this day of June 8, 1918." is not sufficient upon which to base a sentence. This seems to be a case of first impression as to the exact point raised by counsel. There seems to be a division of authorities as to whether a verdict of guilty as charged in the indictment is sufficiently definite to fix the amount of money stolen or embezzled, as the case may be. Iowa, Illinois, Ohio, Nebraska, and Arizona hold that the verdict of the jury itself must contain a finding in express terms of the amount of money stolen or embezzled. It seems, however, that the weight of authorities in the United States is inclined to the other view. The question of whether or not it was necessary for the jury to find the value of the property stolen in the case of larceny came up in this state in Howell v. State, 1 Or. 241, in which it was held that it was not necessary for the jury to enter in their verdict the value of the property stolen. Howell v. State, supra, was quoted in State v. Kelliher, 32 Or. 240, 50 Pac. 532, on a conviction for larceny. In the latter case Justice Bean observes: "But it was early held in this state that, on an indictment for stealing property of a specified value, it was not necessary for the jury to assess the value in their verdict. Howell v. State, 1 Or. 242. And this is in harmony with the great weight of authority. A general verdict of guilty affirms the truth of all the material allegations of the indictment, including that of value, so far as the same is material; and therefore, on a charge of stealing several articles of specified values, such a verdict is a finding that the defendant stole all of them, and that their several values were as averred, or at least that their aggregate value is sufficient to constitute the crime charged." The cases cited above would absolutely determine the case at bar, but for the fact that section 1958, L. O. L., contains a provision that the amount of money embezzled must be ascertained by the verdict of the jury as near as may be. [1, 2] Counsel for appellant relies mainly upon cases from Nebraska, Ohio, Illinois, and Iowa; but these states in larceny cases hold directly contrary to the decisions of Howell v. State and State v. Kelliher, supra, and so such decisions have not the force as precedents they otherwise might have. It is a general rule, however, that a verdict of guilty need not specify the degree of the crime of which defendant is convicted, and if a particular degree is charged, and the jury desires to find defendant guilty of a lesser degree, the degree should be specified in the verdict; in other words, the verdiet of guilty as charged in the indictment finds the defendant guilty of the highest degree therein charged. 16 Corpus Juris, 1109, 1110, and cases therein cited. Counsel for appellant contends that this In this case the indictment charges the emverdict contains no finding, as required by bezzlement of a specific sum and the failure section 1958, L. O. L., as to the amount of to return or turn over any portion thereof money embezzled, and therefore such verdict The matter of the amount so embezzled was For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The defendant John Deere Plow Company, hereinafter referred to as the "plow company," is an Illinois corporation engaged in the manufacture and sale of farming machinery and duly licensed to transact business in the state of Oregon. The plaintiff is a merchant doing business at Brownsville in this state. On March 2, 1916, plaintiff and defendant entered into a written agreement, known as a general implement contract, under which the plow company promised to furnish goods, wares, and merchandise to the plaintiff until November 1st of the same year, on the terms and conditions therein stated. The contract provides: contested in the lower court, The jury had and defendants appeal. Reversed, and crossthe amount specifically called to their atten- complaint dismissed. tion, and, when they brought in their verdict in the form above set out, in effect they made a finding that the defendant had embezzled the exact amount set forth in the indictment. The finding that the defendant was guilty "as charged in the indictment" necessarily had the same effect as if the jury had returned their verdict charging that the defendant was guilty, and then proceeded to enumerate and set forth the exact words, phrases, and figures of the indictment. If this had been done by the jury, there could be no question that the statute had been absolutely complied with, and it seems that to hold that the language "guilty as charged in the indictment" means anything else than a finding as to all the material facts set forth in the indictment, including necessarily the amount embezzled, would be to deserve Butler's description of the person who could "distinguish and divide a hair 'twixt south and southwest side." The greatest objection made against the administration of criminal law in this country is that technicalities are permitted to defeat the administration of justice. To hold in this case that the jury had not complied with the provisions of section 1958, L. O. L., would seem to raise a mere technicality above the administration of justice. Affirmed. "First. The terms and conditions of sale herein set forth apply to all goods ordered herein, and to all subsequent orders, whether given by mail, telephone, telegram, verbally or otherwise, during the life of this contract, which is to remain in force and effect until November 1, 1916, and shall apply to all orders given and accepted subsequent thereto, until the next annual general implement contract between the parties hereto is made, approved and in effect; it being understood, however, that subsequent orders accepted by the plow company shall be governed, as to prices, by the origin of shipment, as shown on the plow company's current price list." MCBRIDE, C. J., and BEAN and JOHNS, an officer thereof, and said goods shall be held JJ., concur. (90 Or. 129) MILES v. SABIN et al. (Supreme Court of Oregon. Nov. 12, 1918.) 1. SALES 464 CONDITIONAL SALES-VA LIDITY. Conditional sales are valid and binding obli gations. 2. SALES 457 "CONDITIONAL SALES" "BAILMENT." "Fourth. It is expressly agreed that the title to and ownership of all goods delivered to and held by the second party under this contract shall remain vested in the plow company, unless expressly surrendered by it in writing signed by subject to its order until fully paid for in money. Sales at retail may be made by the second party before payment, but only in the regular course of business, and the second party has no authority to make sales in bulk. Nothing in this contract shall release the second party from paying the agreed price. Notes of the second party or his customers, taken by the plow company, are not accepted as payment." "Sixth. The second party agrees to give his notes, maturing as herein provided, for all goods shipped by the plow company, upon receipt of same or on any subsequent date, at the option The main distinction between a "bailment" of the plow company, and whenever requested and a "conditional sale" is that in a conditional by the plow company said second party shall sale there is a promise or agreement to pay, and deliver to the plow company proceeds of sales in a bailment there is no such promise or agree-vided, amounting to twenty per cent. (20%) in held by said second party as hereinbefore pro ment. [Ed. Note. For other definitions. see Words and Phrases, First and Second Series, Bailment; Conditional Sale.] 3. SALES 457-CONDITIONAL SALE-CONSTRUCTION OF CONTRACT. Contract between manufacturer and implement dealer, providing "that the terms and conditions of sale apply to all goods which may be ordered," that "nothing in this contract shall release the party from paying the agreed price," and that any notes held by manufacturer should continue to be valid obligations, but that manufacturer should have option to take possession of unsold goods at termination of contract, was a conditional sale contract, and not a contract making implement dealer bailee of manufacturer. Department 2. Appeal from Circuit Court, Linn County; George G. Bingham, Judge. Action by Struble Miles against R. L. Sabin and another. Judgment for plaintiff, excess of the amount of notes given by the second party." Among other things, the eighth clause provides that at the termination of the contract the plow company has the option to take possession of any unsold goods and credit the amount of the invoice price thereof upon any notes or accounts of the plaintiff, and that the plaintiff shall be liable to the plow company for any depreciation in the value of the goods; the amount of such depreciation to be determined by the plow company. "Any note or notes held by the plow company shall continue to be a valid obligation of the second party for the amount of such depreciation." In the placing of an order for goods, the plaintiff signed the following specially prepar ed written application: "John Deere Plow Company of Portland, Oregon, Portland, Oregon: Please ship goods specified in the within list, as per instructions and conditions contained herein, on or about 191-, or as soon thereafter as possible, for which I agree to pay according to prices, terms and conditions stated herein, based on delivery f. o. b. Portland, except on such goods as are priced f. o. b. factories. at once "It is understood that the prices named herein apply to this order only, and are subject to change without notice, and clerical errors in prices herein entered may be corrected by the plow company before approval. "The conditions of agreement, notices and warranty as they appear on pages 3, 4, 5, 6, 7 hereof are made a part of this contract, and this order is given subject thereto. "Struble Miles." tion at law, and decreed that there should be an accounting between the plaintiff and the defendants. From this decree the defendants appeal. W. M. Cake and Homer D. Angell, both of Portland (Cake & Cake and Angell & Fisher, all of Portland, on the brief), for appellants. Weatherford & Weatherford and E. F. Bailey, all of Albany, for respondent. as JOHNS, J. (after stating the facts above). It is conceded that the plow company shipped merchandise to the plaintiff to the value of the notes and the open account; that the merchandise was ordered and re Such an order was always subject to the ap-ceived and the notes were executed by the proval of the plow company. After the execution of such contract and pursuant to its terms, the plaintiff placed certain written orders with the plow company, and on May 17, 1916, executed to it his certain promissory note for $249.95, payable July 15, 1916, with interest at 8 per cent. per annum from maturity, and a certain other promissory note for $90, payable August 15, 1916, with like interest, in each of which it was provided that in the event of suit or action he would pay reasonable attorneys' fees, the amount of the notes corre sponding with the respective amounts of charges for merchandise which was shipped to the plaintiff pursuant to his written application. Thereafter, before July 31, 1916, the the written contract. "It goes without saying that if there are, in the contract, inconsistent provisions, some of which indicate that the title was reserved, and some that the title passes, the dominant thought of any formal contrary statement." John Deere must be ascertained and given effect, regardless Plow Co. v. Mowry, 222 Fed. 1, 5, 137 C. C. A. 539, 543. depends, not upon the name given it by the parties, or the form of the instrument evidencing it, but upon the ruling intention of the parties, gathered from all the language of the contract." McDaniel v. Chiaramonte, 61 Or. 403, 407, 122 Pac. 33, 35. "Whether the transaction is a conditional sale plow company under the terms and provisions of the contract furnished to the plaintiff merchandise to the amount of $73.91, for which the plaintiff did not execute his note. The notes and account were assigned to the defendant Sabin for collection, and for failure to pay he commenced an action against The contract provides "that the terms and the plaintiff here in the circuit court of Linn conditions of sale apply to all goods which county, to recover the amount of the notes, may be ordered"; that "nothing in this conattorneys' fees, and the account. To defeat tract shall release the party from paying the action, the plaintiff filed his complaint the agreed price"; that the plaintiff agreed in equity against the defendants, claiming in "to give his notes for all goods shipped by legal effect that he had never purchased any the plow company upon receipt of shipment"; goods, wares, or merchandise from the plow and that any notes held by the plow company company, and that the facts made and consti- should continue to be valid obligations. The tuted the plaintiff a bailee of the plow com- written order for the goods provides, "for pany for all the goods which were shipped which I agree to pay according to prices, and delivered to him under the contract; terms and conditions" therein stated. All of that the notes were without consideration; this clearly implies that it was the purpose and asking for a decree enjoining the prosecu- of the contract that the plaintiff should be tion of the action at law and for an account- and become liable as a purchaser, that the ing between himself and the defendants. | remaining provisions were designed for the The defendants filed an answer in which they set forth and allege the terms of the written contract and the placing of the written orders, and claim that under the facts such transactions were conditional sales, and that, the conditions having been waived, the plaintiff is now liable as a purchaser. protection of the plow company, and that for such purpose the title to the merchandise ordered and shipped should be and remain vested in the plow company until the purchase price was fully paid. [1, 2] While there is a sharp conflict in the authorities as to what is a "bailment" The only question to be determined on this and what is a "conditional sale," yet in this appeal is the legal force and effect of the state conditional sales are held to be valid written instruments under consideration. and binding obligations. This rule was first The trial court found that under such instru- announced in the case of Singer Manufactur. ments the plaintiff was the bailee of the plowing Co. v. Graham et al., 8 Or. 17, 23, 34 The decree of the circuit court should be reversed, and the cross-complaint dismissed. It is so ordered. by Landigan v. Mayer, 32 Or. 245, 51 Pac. [ tract of sale, and that there was a valid 649, 67 Am. St. Rep. 521; Schneider v. Lee, consideration for the promissory notes and 33 Or. 578, 17 Pac. 269; Herring-Marvin Co. the open account. v. Smith, 43 Or. 315, 72 Pac. 704, 73 Pac. 340; McDaniel v. Chiaramonte, 61 Or. 403, 122 Pac. 33; Thienes v. Francis, 69 Or. 165, 138 Pac. 490; Francis v. Bohart, 76 Or. 1, 143 Pac. 920, 147 Pac. 755, L. R. A. 1916A, 922; and International Harvester Co. v. Bauer, 82 Or. 686, 162 Pac. 856. The main distinction between a "bailment" and a "conditional sale" is that in a conditional sale there is a promise or agreement to pay, and in a bailment there is no such promise or agreement. "It is well settled that in a sale title passes to the buyer, while in an agency title remains in the principal although possession is transferred to the agent." 6 C. J. 1091, § 7. "In general, provisions that the consignee shall on receipt of the goods, or at some time or times thereafter, pay for all goods received, whether sold or not, and that he may sell to whom he will, at what prices and on what terms he will, are characteristic of a contract of sale, whatever terms may be used in describing it. If it appears that possession of property has been transferred but that a naked title has been reserved merely to secure payment of the price, the contract is a sale, although in the agreement it may be called an agency." 6 C. J. 1093, and authorities there cited. The case of Harkness v. Russell, 118 U. S. 663, 7 Sup. Ct. 51, 30 L. Ed. 285, is well considered, and the rule is there laid down that "In the absence of fraud, an agreement for a conditional sale of personal property, accompanied by delivery, is good and valid, as well against third persons as against the parties to the transaction." [3] The question here presented is one between the parties to the contract. The plaintiff received the goods and admits the execution of the notes pursuant to the terms of the contract, and we construe the contract to be a conditional sale. McDaniel v. Chiaramonte, 61 Or. 403, 122 Pac. 33; International Harvester Co. v. Bauer, 82 Or. 686, 162 Pac. 856; John Deere Płow Co. v. Edgar Farmer Store Co., 154 Wis. 490, 143 N. W. 194; Ludvigh v. American Woolen Co. (D. C.) 176 Fed. 145; Dunlop v. Mercer, 156 Fed. 545, 86 C. C. A. 435; William W. Bierce, Limited, a Corporation, v. Hutchins, 205 U. S. 340, 27 Sup. Ct. 524, 51 L. Ed. 828; John Deere Plow Co. v. Mowry, 222 Fed. 1, 137 C. C. A. 539. In the case of Herring-Marvin Co. v. Smith, 43 Or. 315, 331, 72 Pac. 704, 706, this court laid down the rule that— "Where a party has agreed to purchase and pay for the property, and has or is entitled to possession until default, the seller may have choice of one of four distinct remedies, among which he may waive a return of the property, treat the contract as executed on his part, and recover from the buyer the agreed price." This case was cited and approved in McDaniel v. Chiaramonte, supra. We are of the opinion that the plaintiff is liable as a purchaser on the conditional con MCBRIDE, C. J., and BEAN and OLSON, JJ., concur. (90 Or. 137) KEMMERER v. TITLE & TRUST CO. (Supreme Court of Oregon. Nov. 12, 1918.) 1. FRAUDS, STATUTE OF 129(5)-LAND CONTRACT-PART PERFORMANCE. Payment by purchaser of $140 on land contract, where purchase price was $750, was sufficient part performance to entitle purchaser to specific performance, though contract did not comply with statute of frauds. 2. VENDOR AND PURCHASER AL RESCISSION 334(3)—MUTU RECOVERY OF PURCHASE Forfeiture provision in land contract may be self-executing, or may merely confer option upon vendor, in which latter event default does not of itself work a forfeiture, and vendor is entitled thereto only after a declaration of forfeiture or some equivalent act or conduct. 4. VENDOR AND PURCHASER 79 - FORFEITURE OF PAYMENTS. A provision in land contract for forfeiture of payments will not be construed self-executing, unless unequivocal language is used showing plainly and clearly that such was the intention of the parties. 5. VENDOR AND PURCHASER 79 - FORFEITURE OF PAYMENTS. Stipulation in land contract that, upon purchaser's noncompliance, "deposit shall be forfeited as liquidated damages." is not a self-executing forfeiture clause. 6. VENDOR AND PURCHASER 101-TIME OF PAYMENTS-WAIVER BY VENDOR. Where installment land contract provided for forfeiture of payments upon purchaser's nonstrict compliance with terms as to time of paycompliance with contract. vendor. after waiving ment. could not claim forfeiture for default in payment without notifying purchaser of its intention to claim a forfeiture unless he made payment within reasonable time. 7. VENDOR AND PURCHASER MENT OF CONTRACT. 86-ABANDON Under installment land contract providing for forfeiture of payments upon noncompliance with contract, letter of purchaser stating that he was unable to make further payments, and that he would have to let the land go, was an abandonment of the contract, dispensing with necessity of vendor's giving notice of termination of con tract in order to claim forfeiture of payments. Department 1. Appeal from Circuit Court, Multnomah County; George N. Davis, Judge. Action by F. L. Kemmerer against the Title & Trust Company. Judgment for defendant, and plaintiff appeals. Afirmed. The Gearhart Park Company owned a tract of land which had been divided into lots and blocks. These lots were placed on the market and were being sold through salesmen em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |